FCC Requirement for Written Consent for Telemarketing “Robocalls” and Autodialed Telemarketing to Cell Phones to be Effective October 16, 2013

The Federal Communications Commission (FCC) has announced October 16, 2013, as the effective date for its new rules requiring companies to obtain prior express written consent from consumers before calling them with prerecorded telemarketing “robocalls” or before using an autodialer to call their wireless numbers with telemarketing messages.

The FCC also announced January 14, 2013, as the effective date for its new rule requiring that prerecorded telemarketing messages must include an automated op-out mechanism. November 15, 2012, was set as the effective date for the new rule matching FCC rules on measurement of the abandoned call rate with changes adopted by the Federal Trade Commission (FTC) in 2008 and requiring the recorded message played for an abandoned call to include an automated opt-out mechanism.

The new rules were adopted by the FCC in an order issued in February 2012 , but announcement of effective dates had been delayed awaiting approval from the Office of Management and Budget (OMB). Additional information about each of the new requirements follows.

Written Consent Requirement for Prerecorded Telemarketing and Autodialed Calls to Cell Phones

The rules adopted by the FCC require callers to obtain prior express written consent from the called party before placing an autodialed or prerecorded telemarketing call to a wireless phone number or before making a prerecorded telemarketing call to a residential phone number.1 The FCC does not currently require written consent (though it does require consent) for autodialed or recorded telemarketing calls to cell phones or recorded telemarketing calls to residential phones.

Prior written express consent is defined as a written agreement, containing the telephone number and signature of the person called, that includes a “clear and conspicuous disclosure” that by signing the agreement the person authorizes telemarketing calls from the seller using an autodialer or a prerecorded message. The agreement must also include notice that the person is not required to sign the agreement “as a condition of purchasing any property, goods, or services.”

The signature on the consent agreement may be an electronic signature, which can include a signature obtained by e-mail, website form, text message, telephone keypress, or voice recording.

Automated Opt-Out Requirement for Prerecorded Telemarketing Calls

The FCC’s new rules require that prerecorded telemarketing messages that could be answered by a live person must include an automated mechanism, announced at the outset of the call and available throughout the duration of the call, that will allow the called party to opt out of receiving future telemarketing calls from the seller. Current FCC rules do not require an automated opt-out mechanism in prerecorded telemarketing calls. The mechanism must automatically add the consumer’s number to the caller’s company-specific do-not-call list and must immediately disconnect the call. For prerecorded telemarketing calls that are answered by voice mail or an answering machine, the message must include a toll-free number that the consumer can call to be connected directly to an automated opt-out system.

Automated Opt-Out Requirement for Abandoned Call Recorded Message

Any telemarketing call placed using an autodialer that is answered by a person and not connected to a live operator within two seconds is considered “abandoned” under FCC rules.2 Current rules on abandoned calls require a recorded message be immediately played stating the name of the business on whose behalf the call was placed, that the call was for telemarketing purposes, and a telephone number at which the called party may assert a do-not-call request. The FCC’s new rules will also require that the recorded message include an automated opt-out mechanism. Current FCC rules do not require an automated opt-out mechanism in the prerecorded message that must be played for an abandoned call.

Revision to Measurement of Abandoned Call Rate

Abandoned calls are not allowed to exceed three percent of calls placed by a telemarketer. Current FCC rules allow the three percent abandoned call safe harbor to be measured against all telemarketing calls made over a 30-day period. The new FCC rule amends the method by which it measures abandoned calls to match FTC rules that measure abandoned calls over the duration of a single calling campaign, if the campaign is less than 30 days, or separately over each successive 30-day period during which the calling campaign continues. A “campaign” is defined as “the offer of the same good or service for the same seller.”

* * *

Please contact your Mintz Levin telecommunications attorney, or one of the authors listed above, for more information as we continue to follow these developments.

1 The FCC recognized the important privacy controls consumers have under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) over whether and how their protected health information is used and disclosed for marketing purposes and exempted health care-related calls that are subject to HIPAA from the requirement for prior express written consent.

This communication may be considered attorney advertising under the rules of some states. The information and materials contained herein have been provided as a service by the law firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; however, the information and materials do not, and are not intended to, constitute legal advice. Neither transmission nor receipt of such information and materials will create an attorney-client relationship between the sender and receiver. The hiring of an attorney is an important decision that should not be based solely upon advertisements or solicitations. Users are advised not to take, or refrain from taking, any action based upon the information and materials contained herein without consulting legal counsel engaged for a particular matter. Furthermore, prior results do not guarantee a similar outcome.